Appeals court upholds new Texas abortion rules

Mar. 27, 2014
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Demonstrators hold up signs March 6, 2012, during Women's Health Express, a bus event held in San Antonio to protest an attempt to cut Planned Parenthood out of the state's Women's Health Plan. / Helen L. Montoya, AP

by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

A federal appeals court's decision Thursday upholding tough new abortion restrictions in Texas that a lower court had struck down increases the chance that the issue is headed to the Supreme Court.

A three-judge panel of the 5th Circuit Court of Appeals ruled that the state did not violate the Constitution by requiring that abortion doctors have admitting privileges at nearby hospitals and restricting the availability of abortion-inducing drugs.

That law had been struck down by a federal district court, but the appeals court blocked its effect, and the Supreme Court refused to step in. As a result, the law has remained in effect, and it has resulted in many of the state's abortion clinics shutting down.

When the Supreme Court refused in November to restore the state's abortion privileges while the case progressed, its four liberal justices objected - and hinted at their desire to get involved.

"The underlying legal question - whether the new Texas statute is constitutional - is a difficult question," Justice Stephen Breyer wrote. "It is a question, I believe, that at least four members of this court will wish to consider, irrespective of the 5th Circuit's ultimate decision."

Those are the justices most likely to disagree with Thursday's verdict, making it likely that the case will be heard by the high court in its next term, which begins in October.

The court has heard two abortion-related cases this term. One is a challenge by family-owned corporations to the requirement that health policies issued under the new federal health care law include full coverage of contraceptives, including those the owners say cause abortions. The other challenges Massachusetts' 35-foot buffer zone around abortion clinics, designed to keep demonstrators away from patients.

Not since 2007 have the justices taken on abortion directly as a medical procedure. That ruling upheld a federal ban on "partial-birth" abortions, usually performed at 20-24 weeks of pregnancy, and led to a rise in state restrictions.

If the Texas case is granted - presuming Planned Parenthood seeks the Supreme Court's review - it could test the limits of the court's landmark 1992 ruling in Planned Parenthood v. Casey. That case, a successor to the Roe v. Wade decision of 1973, gave states broader authority to impose requirements such as 24-hour waiting periods and parental consent.

The court has declined to hear several other abortion cases this term, including lower court decisions striking down Arizona's ban on most abortions after 20 weeks of pregnancy and Oklahoma's mandated ultrasound tests.

Abortion rights supporters in Texas had protested that the laws represented an effort to curtail abortions in Texas. In its opinion Thursday, the three-judge appeals court panel said the law "on its face does not impose an undue burden on the life and health of a woman." It was written by Judge Edith Jones, an appointee of Ronald Reagan.